Untitled - International Commission of Jurists

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Chapter Five – Sri Lanka’s Criminal Justice System 1. Introduction The preceding chapters on the history of political violence in Sri Lanka, the evolution of constitutionalism, illustrative cases, and commissions of inquiry, provide a basis for looking at systemic elements of impunity in the criminal justice system as reflected in the way the state has responded to gross human rights violations. This chapter engages in a detailed critique of persistent failures in investigations and prosecutions. The analysis then moves on to systemic elements in the investigations and prosecutions. 2. Investigations and prosecutions The criminal justice system in Sri Lanka has tolerated acts amounting to crimes under international law, including unlawful killings and enforced disappearances, for the better part of the past few decades. In view of such state complicity, it was not surprising that effective investigations and prosecutions have been rare and, then only against junior officers. The rationale has been that even if grave crimes were committed, these were in situations of extraordinary stress for the average soldier or police officer, a factor that should counterpoise against any demand for accountability. This intent appears to run through judicial decision-making and is facilitated by laws that are weak, archaic, or are incompatible with Sri Lanka’s human rights obligations, as in the case of emergency laws. Where there have been attempts to hold perpetrators accountable for gross human rights violations to the extent possible under existing law, there has been a clear lack of political will to prosecute such cases. The rule ‘of’ law has effectively been replaced by rule ‘by’ law of executive fiat, most often through the impediment of prosecutorial action, whether regarding enforced disappearances in the South 434 or in the North and East. In some instances, human rights investigations established by law have identified perpetrators but no action has been taken. For example, the Human Rights Task Force (HRTF), after a series of visits to the area, named four army personnel as responsible for the alleged enforced disappearance of some 158 persons from a refugee camp at Vantharamoolai on 5 September 1990, 435 but no action was taken to investigate these allegations or to prosecute the named perpetrators. Commenting on this situation, then Chairman of the HRTF, Justice J.F.A. Soza, observed; The perpetrators of this dastardly crime have been identified and named by me in my previous report and although credible evidence is available, no inquiry whatsoever has been initiated into this incident where as many as 158 persons were arrested and have disappeared and must be presumed to have been killed extra judicially. Parents and relatives and the pubic of the area are living in anguish over the loss of their loved ones. The State remains as unmoved and as inscrutable as the sphinx.” 436 434 The term ‘the South’ is used in this Study as referring to all the provinces excepting the North and East. 435 Human Rights Task Force, Annual Report 10.08.1992-10.08.1993, at p. 23. 436 Human Rights Task Force, Annual Report 10.08.1993-10.08.1994, at pp. 14-15. 125
The problem of non-indictments is not specific to cases of enforced disappearances but is well seen in instances of torture cases from the South as well, involving the torture of Sinhalese as well as Tamil persons by Sinhalese police officers. In many cases, despite disclosure of evidence of torture and other ill-treatment prosecutions have not ensued. 437 Even when political will to take action against perpetrators had been manifested at the highest levels, the obduracy of the military establishment has prevented it being translated into concrete action. An illustrative example of this was in January 1996 when then President Kumaratunge directed the Army Commander to place 200 service personnel on compulsory leave, following their repeated involvement in gross human rights abuses as evidenced in the Disappearances Commissions Reports. 438 However, the order was not implemented. The extent to which this facility of impunity prevails on the part of the military hierarchy is exemplified in the Embilipitiya Case, referred to above. Here, a senior military officer, of Sinhalese ethnicity, then Lt Col. Parry Liyanage, was implicated in the long-term detention of Sinhalese schoolchildren in a camp under his direct control during the conflict between the Government and the JVP in the 1980s and early 1990s as discussed above. He was acquitted by the High Court due to the want of evidence of direct involvement to a standard satisfying the criminal burden of proof beyond reasonable doubt. He thereafter filed a fundamental rights petition in the Supreme Court saying that he should have been given his due promotion as Brigadier General. By that time, he had already been promoted to Brigadier by the Army Commander. However, further promotions were vested by law in the hands of the President, 439 who had refused to make the promotion due to his being implicated in the Embilipitiya Case. Despite this, the Supreme Court decided that the requisite promotion ought to be given as Liyanage’s responsibility was no more and no less than all the others in the chain of command. The ruling was in direct contrast to the observations of the 1994 Disappearances Commission in respect of the long-term detention of the schoolchildren at the Sevana Army camp, 440 which appeared not to have been brought 437 Pinto-Jayawardena, Kishali ‘The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka’, The Rehabilitation and Research Centre for Torture Victims (RCT) Denmark, 2009, at pp. 178-180. 438 Hoole, Rajan, op. cit, at p. 272. Kumaratunge is commended for this action given that it was taken despite an ongoing war situation. 439 Under the 1978 Constitution, it is the executive President of the country who is the Commander in chief of the Armed Forces. (Article 30) The President is also the Minister of Defence, by virtue of Article 44 (2), which enables the assigning of any specific ministerial subject or function to be directly under the office of the President. By virtue of regulations made under Section 155 of the Army Act, the Commander in Chief is empowered to make all appointments and promotions above the rank of major. For discussion of this case, see Pinto-Jayawardena, Kishali, ‘Rights Accountability at stake; the difficult dilemma of the non-promoted brigadier,’ Moot Point, Centre for Policy Alternatives, Legal Review, 2000, at p. 45. 440 Volume 11 of the Special Report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission (unpublished), at p. 36. ‘In view of the above evidence elicited from the Army official register for the Sevana army camp, the positions taken up by the Army Commander in the Answers filed in the Court of Appeal in respect of the habeas corpus applications that the Sevana army 126
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In exploring what constitutes a ver
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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government agencies may be unable o
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appointed under the Commissions of
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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measures recommended in regard to r
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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The violence reached a crescendo in
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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Declaration on Upholding Human Righ
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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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• Perera v. AG 89 and Wickremeban
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was also spared the distinction of
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The Court’s reasoning at times ap
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however, linked the habeas corpus a
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The ineffectiveness of the writ rem
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The Court of Appeal when sending th
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anything. We have received informat
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the findings of guilt against the a
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The Embilipitiya case is unique in
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police did not carry out the arrest
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sexual intercourse […].” 177 He
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accused even though the relevant do
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confession made to the military pol
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Chapter Three - Commissions of Inqu
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excesses that had preceded the acti
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property of Sinhalese persons domic
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appear before the Commission was al
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Notwithstanding these consideration
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Page 80 and 81: (f) the measures necessary to preve
Page 82 and 83: were SLFPers. I was told, that area
Page 84 and 85: The 1994 Western, Southern and Saba
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Page 92 and 93: ouster) clause ruling out judicial
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Page 102 and 103: ecommendation to this effect by the
Page 104 and 105: As of 31 December 2000, according t
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
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Page 116 and 117: analysis, these pillars of the judi
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Page 120 and 121: Regardless of the amendment however
Page 122 and 123: It was recorded by at least some of
Page 124 and 125: 6.4. Affording alleged perpetrators
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Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
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Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
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Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
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Page 156 and 157: have been adjourned by the relevant
Page 158 and 159: fact, acknowledged. 563 The accused
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Page 162 and 163: Thavaneethan v. Dissanayake [2003]
Page 164 and 165: Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167: Vadivel Sathasivam and Parathesi Sa
Page 168 and 169: Criminal Courts Commission, Session
Page 170 and 171: Keenan, Alan, ‘Making Sense of Bi
Page 172 and 173: Principles on the Effective Prevent
Page 174 and 175: United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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